Maritime law

By

Shakshi Goyal

Email: goyal26shakshi@gmail.com

Mobile: +91 7585080313

 INDEX

S.NO CONTENTS PAGE NO.

1 Cover Page 1
2 Index 2
3 Introduction 3
3 Chapter 1- Ship Arrest 3
4 Chapter 2- Rationality 4
5 Chapter 3- Jurisdiction of Indian courts 4-6
6 Chapter 4- Procedure 6

INTRODUCTION
 Maritime Law is a set of rules and regulations which govern the matters relating to sea and
ships. It is also known as admiralty law. Numerous legal luminaries have provided their
definition of the term 'maritime law.' Some of them are as follows: Professor Grant Gilmore and
Charles L. Black, in their 'Law of Admiralty', define maritime or Admiralty Law as the
following:

''A corpus of rules, concepts and legal practices governing certain centrally important concerns
of the business of carrying goods and passengers by water.''

Black's Law dictionary defines maritime Law as- "the body of law governing marine commerce
and navigation, the carriage at of persons and property, and marine affairs in general; the rules
governing contract, tort and workers' compensation claims or relating to commerce on or over
water."

The Maritime Law is comprehensive, and it is that branch of jurisprudence which covers all the
matters relating to sea and ships.

1. SHIP ARREST

Ship arrest is a process by in which a ship is prevented from trading or moving until the matter in
question is decided. It is an exclusive jurisdiction that is granted to an admiralty court to detain a
vessel to secure a maritime claim. Article 2 of the International Convention Relating to the
Arrest of Sea-Going Ships, 1952 defines the term arrest as the following:

"(2) "Arrest" means the detention of a ship by judicial process to secure a maritime claim, but
does not include the seizure of a ship in execution or satisfaction of a judgment."

2. RATIONALITY
A ship arrest may be exercised under the authority of a court having admiralty jurisdiction, for
reasons like loss of life, loss of property, salvage, collision, execution of a decree, violation of
customs, usages and regulations or norms.

3.  JURISDICTION OF INDIAN COURTS

Before India gained Independence, under The Colonial Court of Admiralty Act, 1890, the High
Court of Bombay, Madras and Calcutta were the only judicial authorities competent to deal with
matters relating to Admiralty. The other courts of justice were restricted from dealing with issues
concerning the Admiralty. Under the Admiralty Courts Act, 1861, the three presidency courts
were vested with the same powers as that of the High Court of England.

Section 35 of the Admiralty Courts Act, 1861 deals with the jurisdiction of Admiralty court, and
it reads as the following:

"35. The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised
either by proceedings in rem or by proceedings in personam."

The Law relating to Admiralty jurisdiction is relevant even today under Article 372 of the
Constitution of India.

Therefore, in M.V. Elisabeth vs Harwan Investment and Trading, 1993 AIR SC 1014, the
question was whether a court having no admiralty jurisdiction could entertain a case relating to
Admiralty. The Supreme Court, in this case, widened the scope of admiralty jurisdiction in India

The court held:

"Although statutes now control the field, much of the admiralty law is rooted in judicial
decisions and influenced by the impact of Civil Law, Common Law, and equity. The ancient
maritime codes like the Rhodian Sea Law, the Basilika, the Assizes of Jerusalem, the Rolls of
Oleron, the Laws of Visby, the Hanseatic Code, the Black Book of the British Admiralty,
Consolato del Mare, and others are, apart from statute, some of the sources from which the Law
developed in England. Any attempt to confine Admiralty or maritime Law within the bounds of
statutes is not only unrealistic but incorrect."

The Supreme Court made the following observation:

"The High Court in India are superior courts of record. They have original and appellate
jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and
subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited
jurisdiction, including the jurisdiction to determine their powers."

Further, in this case, the International Convention for the unification of some rules regarding
Arrest of Sea-going Ships (The Arrest Convention), 1952 was also made applicable to India,
although it was not ratified.

Similarly, In M.V Sea Success case, the Supreme Court held that the principles laid down in
1999 Geneva Arrest Convention could be applied in India on matters concerning Admiralty.

In India, The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 was enacted
on 9 August 2017 to consolidate the laws relating to Admiralty. The Act implemented, repeals
all the outdated provisions relating to Admiralty.

As per Section 3 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017,
the jurisdiction concerning admiralty matters shall be vested in the respective High Courts, and
the courts shall exercise their authority within the territorial waters of their jurisdiction.

Therefore, now the scope of admiralty jurisdiction has been widened, and apart from the
presidency courts, the following courts (coastal regions) have jurisdiction to deal with admiralty
matters:

 High Court of Gujarat

 High Court of Andhra Pradesh
 High Court of Orissa
 High Court of Kerala
Permissible Claims

The High Courts' as discussed earlier, has the jurisdiction to entertain claims as provided under
Article 1 of the Arrest Convention, 1952 and Article 1 of the Geneva Arrest Convention, 1999.
Therefore, before the enactment of the Admiralty (Jurisdiction and Settlement of Maritime
Claims) Act, 2017, the claims were as provided under the conventions as discussed earlier.
However, now the Law relating to Maritime claim is provided under section 4 of the Admiralty
(Jurisdiction and Settlement of Maritime Claims) Act, 2017.

4. PROCEDURE

The Law relating to the arrest of a vessel in rem is provided under Section 5 of the Admiralty
(Jurisdiction and Settlement of Maritime Claims) Act, 2017.

Under the section, the High Court may order for the arrest of any vessel within its jurisdiction,
where there is a reason to believe that the owner of the vessel is liable for the claim, or the
demise charterer of the vessel is liable for the claim, or the claim is based on a mortgage or
similar charge, or the claim relates to possession or ownership, or the claim is against the owner,
demise charterer, manager or operator of the vessel.

Once the claim has been decided, the claimant has to state the detailed facts, along with the other
particulars and must make application for the substantive suit. The Admiralty suit should specify
the name of the claimant, the name of the vessel, flag of the vessel, details of the owner of the
ship, facts relating to the dispute, grounds and prayer.

Once an arrest warrant is issued upon a vessel, the owner of the vessel has to appear and settle
the claim or challenge the arrest made.

Therefore, the Law relating to ship arrest is now well settled in India. The admiralty law is an
area of development, and it plays an inevitable role in protecting the citizens as well as ensuring
that no organization or individual violates the Law of the sea.